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CLAMPING ON PRIVATE LAND
This document started after a few colleagues of mine were
clamped at work. I wanted to check out the legality of
clamping and find out what, if any, remedies there were. As
I started trawling various forums and looking at the issues
there was a distinct difficulty in trying to find answers.
The information was there but not in anyone place.
This guide covers clamping on private land only and not
on the public highway.
A good starting point in understanding your rights and
the obligations of the clampers is contained in the
Citizens Advice Bureau’s excellent
advice guide.
However the guide has very little background and is
necessarily brief. This document seeks to fill in the blanks
and provide further information.
The Security Industry Authority refers to clamping as
vehicle immobilisation. This can also mean towing away or
blocking in. As these are all related remedies for trespass
I will use the term interchangeably in this document.
The document includes my recommendations on what to do if
you are clamped and what remedies you can seek. The list of
remedies is not exhaustive and should not be treated as
such.
Please note that I am not a lawyer and the following
should not be construed as legal advice. While I have set
out to be accurate the information could contain errors or
omissions.
Any advice given is of a general nature and I will not
accept liability for costs incurred for using any part of
this guide. You should seek legal advice before embarking on
any course of action recommended.
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Background and Legal Basis for Clamping
Clamping began in the 1980s as a controversial statutory
measure to deter illegal on-street parking in Central
London. It was the success of that measure and its extension
to other congested city centres which encouraged its use by
private landlords and the proliferation of clamping
companies willing to carry out that work on their behalf.
But whereas on-street clamping was tightly regulated with
specific procedures, rights of appeal and controls over the
amount of release fees, the opposite was true of private
clamping, which was completely unregulated and a product of
the common law.
The common law principle that clamping uses is a medieval
remedy called damage distress feasant. This principle
basically put is that something may be detained until
damages have been recovered or satisfaction be rendered for
injury they have done. In the past this principle was
applied amongst other things for trespass of livestock. If
someone’s livestock strayed onto someone else’s land and
caused damage, the landowner was entitled to keep hold of
(distress) the livestock until damages were paid. In the
same way clamping involves keeping hold of (distressing)
your car until you pay for the damages you have caused in
parking where you have. This remedy also applies to towing a
vehicle away.
Clamping is illegal in Scotland thanks to a 1992 court
ruling. In BLACK v CARMICHAEL (1992- S.C.R 709) it was
decided that the clamping of a vehicle and the demanding of
a release fee amounted to extortion and theft.
In England and Wales a different approach was taken. A
Court of Appeal decision in 1995 gave clear guidance. The
Case of ARTHUR v ANKER (Times Law Reports 1st December 1995)
produced a landmark decision
On the 6th May 1992 David Arthur knowingly parked his car
in a private car park belonging to commercial leaseholders
for around 45 minutes whilst visiting the nearby local
authority planning department. In doing so he disregarded a
prominent notice warning that unauthorised vehicles would be
wheel-clamped and a £40 release fee charge.
On returning to his vehicle he saw the inevitable clamp.
He refused to pay any release fee and made an unsuccessful
attempt to remove his own vehicle with a pick up truck –
which led to an altercation between his wife and the
clamper, Thomas Anker, which led to Mr Anker claiming he had
been assaulted by Mr Arthur’s wife.
In the early hours of the following morning, Mr Arthur
returned to the car park and succeeded in removing the two
clamps, which had immobilised his vehicle, before driving
away. Unfortunately this did not satisfy Mr Arthur who went
on to sue Mr Anker for trespass to his vehicle. In rejecting
Mr Arthur’s claim, the Court of Appeal laid down the
principles of law which now govern modern wheel clamping.
These are:
Where warning notices are prominently displayed, any
motorist who parks a vehicle in defiance of that notice will
be deemed to have consented to the clamping of his/ her
vehicle and its subsequent detention until a release fee is
paid.
The amount of the de-clamping fee must be reasonable.
Arrangements must be in place to enable the prompt
release of a vehicle once the vehicle owner has indicated
that s/he is willing to pay the release fee.
There remains uncertainty as to what constitutes a
"reasonable release fee". In VINE v LONDON BOROUGH OF
WALTHAM FOREST (Times Law Reports 12th April 2000), the
original trial judge had regarded a release fee of £105 as
reasonable- although the Court of Appeal later ruled the
clamping illegal on other grounds.
On the morning of 6th March 1997 Ms Vine had been
undergoing hospital treatment. She felt unwell and therefore
parked her car (on private land) in order to leave the
vehicle and be sick. She did not see the clamping signs,
which were displayed. On returning a few minutes later she
found that her car had been clamped. Under protest, she paid
the release fee by credit card, but, assisted by the
Automobile Association, she successfully sued for a refund.
The lesson from Vine is that even when signs are
prominently displayed, a motorist who has not seen them
cannot have consent to a vehicle being clamped. An
underlying principle is that it is not only objective
judgement must be exercised but also subjective judgement as
well. Even if the signs are seen they have to be read and
understood.
Also in amongst the judgement from Vine was a ruling on a
reasonable release fee. In the original case a release fee
of £105 was deemed reasonable. That amount today, taking
into account inflation using the retail price index as a
guide, would now equate to roughly £138.
These two cases decided that clamping in England and
Wales by private companies was legal and provided a certain
framework to govern the activities of the clampers. However
with numerous cases of clamps being applied illegally when
cars were legitimately parked, cases of intimidation,
assault, threatening behaviour on or by the clampers it soon
became clear that there was something wrong. Rightly or
wrongly an act of parliament sought to correct the imbalance
but instead of outlawing clamping as a remedy to
unauthorised parking on private land it instead gave it
cloak of legitimacy. It was lumped in with the Security
Industry Act.
The Private Security Industry Act and The Security
Industry Authority
In 2001 the Private Security Industry Act was passed.
This has been amended and was finally enacted around 2004.
The Act sets out some very strict rules for those wishing to
engage in Vehicle Immobilisation (Car
clamping/towing/blocking in) involving a release charge and
list some pretty stiff penalties for breaches including
fines up to £5000 and 5 years in jail.
Part of the act authorised the setting up of an
administrative body to oversee the licensing of Security
Industry Operators and staff. This body is the Security
Industry Authority. The Security Industry Authority (SIA)
has a website (https://www.the-sia.org.uk/). You can obtain
links to all the relevant legislation relating to the SIA.
More importantly you can perform an online check to verify
the license of any SIA licensed individual.
Licenses fall into two categories – frontline and
non-frontline. Frontline licenses are required by all staff
who will be undertaking day to day security duties including
vehicle immobilisation.
Non-frontline licenses are required by the principals of
firms whose employees undertake duties licensable under the
PSI act.
Landowners have a responsibility to ensure that anyone
performing vehicle immobilisation for a fee on their land is
licensed by the SIA. There are pretty stiff penalties for
landlords (and I guess this would mean CEO or directors if
it’s a registered company) if they allow unlicensed
operators to immobilise vehicles on their land on their
behalf (i.e. acting as their agent).
The SIA do not regulate
the amount of the release fee
the time taken to release a vehicle
the adequacy of signage around the site warning that
vehicles may be immobilised
the complaints procedure of the company employing the
vehicle immobiliser
They SIA advise that
If a vehicle immobiliser uses threatening behaviour or
intimidation they may be committing a criminal offence and
we would recommend that you report such instances to the
police.
The SIA's remit covers the individual undertaking the
licensable activity.
The PSI Act sets out that:
The person immobilising the vehicle must be licensed by
the Security Industry Authority.
The person immobilising or releasing the vehicle must
have their Security Industry Authority identification badge
on display.
Upon payment a receipt must be issued. The receipt should
contain the:
the name of the license holder
the signature of the license holder
the license holders SIA License number
the location where the vehicle was clamped or towed
the date when the vehicle was clamped or towed
Further terms for vehicle immobilisers were set out in
The Private Security Industry Act 2001 (Licenses)
Regulations 2007.
These are
1)A vehicle must not be clamped / blocked / towed if:
a)A valid disabled badge is displayed on the vehicle.
b)It is an invalid carriage
c)It is a marked emergency service vehicle which is in
use as such.
In The Private Security Industry Act 2001 (Licences)
Regulations 2007
“invalid carriage” has the same meaning as in section
253(5) of the Road Traffic Act 1960;
“disability badge” means a badge issued under section 21
of the Chronically Sick and Disabled Persons Act 1970; and
“Emergency vehicle” has the same meaning as in regulation
3(2) of the Road Vehicles Lighting Regulations 1989.
Any firm who does not comply with the above is in breach
of the Security Industry Act and can be prosecuted.
It is also an offence to knowingly employ unlicensed
clampers. Landlords can be fined up to £5000 and/or be
jailed for up to 6 months per offence.
Valid Clamping?
Under the PSI Act and existing case law for clamping to
be valid the following must be present or take place
1)There must be clear and prominent signs indicating a
vehicle may be immobilised.
2)The signs should contain
a) A number at which an offer to pay the release fee can
be made
b) The amount of the release fee (which should be
reasonable)
3) Upon an offer to pay or payment being made the vehicle
must be released in a reasonable amount of time
4) The person immobilising the vehicle must be licensed
by the Security Industry Authority.
5) The person immobilising or releasing the vehicle must
have their Security Industry Authority identification badge
on display.
6) Upon payment a receipt must be issued. The receipt
should contain the:
a) the name of the license holder
b) the signature of the license holder
c) the license holders SIA License number
d) the location where the vehicle was clamped or towed
e) the date when the vehicle was clamped or towed
What to Do If You are Clamped
1)Keep calm, however distressing it may be, getting angry
or upset will do you no good and it may get you arrested.
2)Take a note of any signage. It should be clear and
visible. Look particularly at entrances/exits.
3)If you have a digital camera take pictures of any
signage. Is it readable from where you stand? Was it
prominently displayed where you came in?
4)If you have the ability record/make notes of anything
said or done by the clampers. Particularly record or note
any threatening or intimidating comments or behaviour.
If they demand extra because a tow truck has been called
out refuse to pay and call the police.
5)Ask to see the clampers SIA i.d. If they cannot produce
it call the police. They are possibly unlicensed and thus
committing an offence under the PSI act.
6)Pay on a credit card if you can or by cheque.
7)Do not offer any physical violence to the immobilisers
you are liable to be arrested.
Do not damage a clamp (i.e. cut it off). You will
probably be arrested for “criminal damage”. If can remove it
without damaging it then you can do so.
9)Make sure you get a full receipt with all the required
details
10)Check that the clamper is licensed on the SIA website.
11)If they are demanding a towing fee for a tow truck
turning up or being called but not actually towing refuse to
pay anything other than the release fee.
Can I Recover My Money?
Unfortunately there is no one clear path to go down to
seek redress if you are clamped. More often than not you
will have been forced to pay to have your car returned –
regardless of whether the immobilisation is legal or not.
Unless the firm in question is grossly in breach of the PSI
Act then the only path left open to you is to attempt a
civil recovery. This will need to be done via letter at
first and if that fails then through the county court on the
small claims track.
One final point is that these firms are often
fly-by-night outfits. If you are seeking redress through the
court it is probably best to name the clamping firm and
their employing agent as co-defendants.
Stopping or Reversing Payment
If you have paid by cheque or credit/debit card there may
be avenues open for to try and get the payment stopped or
reversed.
If you can pay by cheque then do not put any guarantee
information on the back. The simple thing to do is ring your
bank and have a stop put on the cheque. It may cost you a
small fee to do so but its better than a large amount. I
suspect that most clamping companies will be unwilling to
accept payment by cheque for this very reason.
If you paid by credit card or debit card then you could,
reasonably in my opinion, claim that you were forced to pay
under duress and that the transaction is invalid.
It may be that your bank or credit card company will be
unwilling to do anything to help you. If that is the case
then the your only remedy is recovery through the civil
courts
Gather Evidence
Before attempting any recovery you need to gather
evidence of any failures to comply with either the SIA
legislation or the case law given under Vine or Anker.
Signage
One of the most common causes of complaint is the lack of
adequate signage. Arthur Vs Anker clearly states that a sign
must be present. Vine further enhances that by saying it
must be seen and understood. If the signage is clearly
posted and you’ve parked in clear violation then you’d
better have a pretty good reason, such as in the Vine case,
to bring a claim against the firm that clamped you.
However that said signage is often missing, inconspicuous
or unreadable. Many posters on the consumer action group
forums have mentioned that poor lighting as a reason for the
signs being missed.
One “pay for a solution” website I have seen suggests
that a guidance point for the visibility of signs is the
Road Traffic Act 1991. As there is no guidance for size of
no parking signs or their placement on private land other
than the case law that they should be clear, visible and
understood you could use the guidance on public land as a
reference. Whether a court would accept this is debatable.
Excessive Charge
There is no legal limit to the amount that can be charged
for a release fee. However the Vine case said that a
reasonable amount in 1997 was £105. This roughly translates
to £138 in today’s terms (based on the CPI and rate of
inflation March 200. It would be worth consulting a lawyer
with a view to court action if you’ve paid significantly
more than this.
Not Licensed By The SIA
If the immobilisers are not registered it may render the
clamping invalid and therefore you should be able to seek a
refund. It may be that attempting a bargain along the lines
of refund my money and I won’t report this breach will be
effective. Bringing pressure to bear on the landlord may
also bring results. In my view you would do better to report
the matter to the SIA and seek redress via the courts as the
clamping should not legally have taken place and by that
reasoning no release fee should have been due. In performing
the unlicensed clamping they have broken the law and both
they and the landowner can be fined up to £5000 and/or be
jailed for up to 6 months per offense.
Summary
It would seem the clampers have it going for them – at
least initially. They get your money and backing in most
cases from the Police. Your only real redress is through the
courts and knowing your rights.
I hope this guide will help. |
